Leavitt v. Garson, s. 87-2666
| Decision Date | 13 July 1988 |
| Docket Number | Nos. 87-2666,87-2791,s. 87-2666 |
| Parties | 13 Fla. L. Weekly 1647 Neil LEAVITT, as Personal Representative of the Estate of Arthur G. Georgalis, Appellant, v. Alan GARSON, Appellee. |
| Court | Florida District Court of Appeals |
Steven W. Davis of Broad and Cassel, Miami, for appellant.
Steven J. Gutter of Kahn & Gutter, Fort Lauderdale, for appellee.
Appellant, Neil Leavitt, as personal representative of the estate of Arthur Georgalis, defendant below, appeals the trial court's order denying his motion to amend his answer, its final summary judgment in favor of appellee, and its amended final judgment awarding appellee $9,594. We reverse.
On April 28, 1987, appellee filed a complaint alleging that he and the decedent had entered into a contract on June 7, 1984, whereby the decedent agreed to transfer to appellee 100,000 shares of stock of AGA (Amateur Golfers' Association) of America, Inc., for a sum in excess of $5,000. The complaint alleged that appellee had paid a sum in excess of $5,000 to the decedent but that the decedent had failed and refused to transfer the stock certificates.
Attached to the complaint was a copy of a letter purportedly signed by the decedent which appellee alleged memorialized the transaction. The letter stated:
Appellee asked for damages for breach of contract, fraud, and for specific performance.
Appellant filed an answer denying all allegations in the complaint and asserting inter alia as affirmative defenses that the plaintiff had failed to recite any consideration for the stock and that there had been no contract between the parties.
On August 4, 1987, appellee moved for summary judgment. An attached affidavit of appellee stated that he had paid the decedent $7,000 on June 7, 1984, but had never received the stock. Appellant filed a responsive affidavit in which he stated that the stock was virtually worthless at the time of the alleged contract and was presently worth only $750 to $1,500. Appellant's affidavit also stated that
On September 4, 1987, appellant filed a motion to amend his answer to include the affirmative defense of the Statute of Frauds. A hearing was held on September 9, 1987, at which time the court considered appellee's motion for summary judgment but apparently did not consider appellant's motion to amend. The court thereafter granted appellee's motion for summary judgment, and on September 17, 1987, rendered a final judgment for $7,000 plus interest and costs in favor of appellee.
Appellant filed a motion for rehearing, arguing that the court should have granted his motion to amend. The court entered an order on rehearing denying appellant's motion to amend his answer and thereafter rendered an amended final judgment in favor of appellee for $9,594.
On appeal, appellant contends that the trial court erred in granting summary judgment for appellee and abused its discretion in denying his motion to amend. We agree.
Appellee asserts that it was undisputed that he paid $7,000 as consideration for the stock and contends that appellant's affidavit does not "unequivocably deny" that the decedent received the money. We conclude, however, that appellant's affidavit is sufficient to constitute a denial of receipt of the funds. Also, appellant's answer specifically denied all allegations of the complaint, number three of which was the allegation that appellee had paid in excess of $5,000 for the stock.
Based on the pleadings and the affidavits, ...
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